RAM CHANDRA Vs. LALA DULICHAND

JUDGEMENT

(1.) This is a plaintiff's first appeal arising out of a suit for ejectment of the defendant, who was a tenant of the plaintiff-appellant, of a cinema building known as Ram Hall in Kanpur. The plaintiff also sued for arrears of rent and for mesne profits for the period during which, according to the plaintiff, the defendant continued in possession after the tenancy had come to an end. According to the plaintiff, the tenancy was terminated by a notice dated 9-4-1946 calling upon the defendant to vacate the building in suit after 10-5-1946 after 12 O'clock in the night. The plaintiff also gave another subsequent notice dated 13-9-1947, in which he called upon the defendant to vacate Ram Hall by 10-10-1947 and deliver the possession of it to the plaintiff. Though the claim, as framed, based the case on ejectment on the earlier notice dated 9-4-1946, it appears that the subsequent notice dated 13-9-1947 was also mentioned in the plaint and during the trial of the suit reliance was placed on this subsequent notice also as having the effect of determining the lease in favour of the defendant. Before the suit was instituted the plaintiff had obtained permission of the District Magistrate for instituting the suit to eject the defendant under Section 3 of the U. P. Temporary Control of Rent and Eviction Ordinance, which was subsequently replaced by the U. P. Control of Rent and Eviction Act, The suit was instituted on 5-11-1947, on which date the U. P. Temporary Control of Rent and Eviction Act had already been promulgated and had come into force.

(2.) The lower court dismissed the suit for ejectment on two grounds. One ground was that the mere permission under Section 3 of the U. P. Control of Rent and Eviction Act granted by the District Magistrate did not empower the plaintiff to bring the suit for ejectment, unless he could also show the existence of one or more of the other grounds mentioned in Clauses (a) to (f) of Section 3 of that Act. The second ground on which the suit was dismissed was that neither of the notices relied upon by the plaintiff for termination of the tenancy was a valid notice, so that there had been no termination of the tenancy in accordance with the requirements of the Transfer of Property Act, In the light of these findings the suit for ejectment was dismissed. The suit for mesne profits also consequently failed. The court granted a decree for arrears of rent upto 9-10-1947 only. No decree for arrears of rent for the period after 9-10-1947 and upto the date of the suit could be granted on the findings given by the lower court as according to the lower court the tenancy was still continuing, which was a month to month tenancy and a full period of month not having expired during this period, no decree for arrears of rent for this fraction of the month could be granted. In this appeal it has been urged on behalf of the appellant that the lower court was wrong in dismissing the suit for ejectment, as the permission granted by the District Magistrate under Section 3 of the U. P. Control of Rent and Eviction Act was sufficient by itself to make the suit maintainable even without the existence of any of the other grounds mentioned in Clauses (a) to (f) of Section 3 of that Act and the lower court was wrong in holding that the tenancy had not been terminated by the notices mentioned above in accordance with the provisions of the Transfer of Property Act. During the course of the arguments However it was conceded By the learned counsel that in claiming the termination of tenancy by notice in accordance with the Transfer of Property Act, the plaintiff could not rely on the first notice dated 9-4-1946 so that the tenancy did not terminate on the expiry of the period fixed by that notice. Reliance was placed only on the second notice dated 13-9-1947 under which it was claimed that the tenancy came to an end on the midnight of 9-10-1947 and it is thereafter that the appellant got the right to bring the suit for ejectment. In the circumstances, the appellant did not challenge the correctness of the decree passed by the lower court for arrears of rent in respect of the period ending on 9-10-1947, which" left a claim for mesne profits for the period between that date and the date of institution of the suit. So far as mesne profits for this latter period is concerned, Sri V. P. Misra. learned counsel for the appellant, made a statement that the appellant desires to give up his claim for mesne profits for this period and does not want a decree to be passed in respect or it in this appeal, even if his suit is decreed and it is held that the tenancy of the defendant respondent had terminated on the midnight of 9-10-1947. In view of this statement made, the only point that arises in this appeal is whether the suit for ejectment has been rightly dismissed by the lower court or not.

(3.) The first ground on which the suit for ejectment has been dismissed by the lower court based on the provisions of Section 3 of the U. P. Control of Rent and Eviction Act of 1947, hardly needs any consideration or discussion by this Court now. The point is now well settled. There was a decision of a learned single Judge of the former Chief Court of Oudh in which it was held that, even if the landlord had obtained permission for filing a suit for ejectment against his tenant under Section 3 of the U. P. Control of Rent and Evictipn Act, that permission would not make the suit maintainable unless the ejectment was sought on one or more of the grounds mentioned in Clauses (a) to (f) of Section 3 of the Act That decision was followed by the lower court; but, since then, the correct position of law has been laid down in a series of decisions of this Court and, further by the Amending Act an explanation was added by which it was clarified by the Legislature that, for bringing a suit for ejectment with the permission of the District Magistrate under Section 3 of the Act, the existence of one of the grounds mentioned in Clauses (a) to (f) of Section 3 of that Act was not necessary and was to deemed never to have been necessary. It does not appear to be necessary to refer to the various decisions in which this point has now been laid down by this Court. We may, however, cite a Division Bench decision of this Court in Ghansyam Das v. Gulab Chand, 1951 All LJ, 616 : (AIR 1932 All 624) (A) and a Full Bench decision in Bhagwan Das v. L. Pyare Lal, 1954 All LJ 638 : (AIR 1955 All 19) (B). In the latter case the effect of the permission granted under Section 3 by the District Magistrate was considered in connection with a suit which was covered by Section 15 of the Act and the Full Bench case clearly held that, when the permission of the District Magistrate had been obtained for filing a suit for ejectment under Section 3 of the Act, the existence of the grounds under Clauses (a) to (f) of Section 3 of the Act was not at alii necessary. In view of this decision by this Court.|_ even the learned counsel for the respondent did not try to support the decision of the lower court on this point.